Notes on a Justice System (or is it Just A System?)
Posted by: Deane F on 24 February 2007
Here's a linear progression for the sake of argument:
A crime is committed. The (alleged) offender is arrested, tried before a jury of his or her peers, and the Judge, upon a guilty verdict being delivered by the jury, enters a conviction. The Judge sentences the offender to a jail sentence.
The offender becomes an inmate in a prison.
It seems to me that in New Zealand an extraordinary thing happens between the passing of sentence and the execution of same. After sentencing the matter becomes administrative. Various State agencies might become involved, including, in New Zealand, the Probation Service and the Parole Board.
If the sentencing Judge has given leave to the offender to apply for release under the Home Detention Scheme (radio ankle-bracelet etc) then the Parole Board will hear that application. Both the Parole Board and the sentencing Judge must apply themselves to the respective laws that set out their powers.
This is the part that rankles - there is little parity between those respective laws. A judge when sentencing must do so in accordance with the Sentencing Act 2002 which sets out purposes and principles of sentencing. But when the offender comes within the administration of the Corrections Dept and goes before a Parole Board to have his application for home detention heard the Board must apply themselves to an entirely different set of principles and purposes as set out in the statutes which empower them.
Posted on: 24 February 2007 by Nigel Cavendish
In the UK the courts determine punishment for crime committed; the Parole Board determine the likelyhood of re-offending (for the unexpired part of the sentence) if released on licence. I do not see any conflict.
Posted on: 24 February 2007 by Deane F
But, among other concerns, the State acts on behalf of a victim of the offending when sentencing. But all of these concerns are set aside in New Zealand if an offender, say, applies for home detention and only a very narrow set of criteria inform the decision to release. How is it that the high principles that inform a judge's sentencing are abandoned once an offender becomes part of the prison system and applies for release?
Posted on: 26 February 2007 by Nigel Cavendish
quote:
Originally posted by Deane F:
But, among other concerns, the State acts on behalf of a victim of the offending when sentencing.
In the UK the State acts on behalf of the Crown, not the victim.
Posted on: 26 February 2007 by Deane F
quote:
Originally posted by Nigel Cavendish:
quote:
Originally posted by Deane F:
But, among other concerns, the State acts on behalf of a victim of the offending when sentencing.
In the UK the State acts on behalf of the Crown, not the victim.
If, by "State", you mean "Country"; and by "Crown" you mean the Government (the Cabinet and Monarch) - then you're saying the Country acts on behalf of the Executive, not the Victim. That makes no sense.
If, by "State", you mean the Judiciary - well that doesn't make sense either. The Judiciary is separate from the Executive and the Legislature.
Posted on: 26 February 2007 by Nigel Cavendish
I can't say it more simply, criminal prosecutions in the UK are not brought on behalf of the victim.
An alleged offence is committed; the Crown Prosecution Service decides whether a prosecution should be brought - on behalf of the Monarch (Crown). Technically, I don't think the Government is a party to it at all, but perhaps a lawyer might comment?
Whether you think that is sensible is another issue.
Posted on: 26 February 2007 by andy c
To a certain extent, and depending on the gravity of the offence, the victim would have some say in how the prosecution proceeds. This is very minor influnecne, but nontheless it's still there.
Posted on: 26 February 2007 by Nigel Cavendish
The victim's say might have a bearing on the CPS decision to prosecute, but any prosecution is brought in the name of the Crown not the victim.
Posted on: 26 February 2007 by Deane F
My comment that, among other concerns, the State is acting on behalf of a victim when it enforces criminal law, is made more in the light of jurisprudential theory than technical legal process.
The State removes the right for individuals to seek redress or remedy for certain wrongs classed as crimes (and therefore acts on behalf of a victim of crime) and this is a fundamental property of the English system of justice (to which New Zealand owes the vast bulk of its legal tradition).
Posted on: 27 February 2007 by Nigel Cavendish
I believe that individuals cannot bring private prosecutions for criminal offences (except perhaps in very exceptional circumstances) but they can still pursue claims for damages suffered as a result of criminal activity through the civil courts.
Posted on: 27 February 2007 by andy c
quote:
The victim's say might have a bearing on the CPS decision to prosecute, but any prosecution is brought in the name of the Crown not the victim.
Indeed - but I was being realistic as well as purist in the interpretation...
Posted on: 27 February 2007 by London Lad
Over here arrest, charge, trial, conviction and imprisonment can (and often does) all take place within 24 hours!
Posted on: 27 February 2007 by Deane F
quote:
Originally posted by Nigel Cavendish:
I believe that individuals cannot bring private prosecutions for criminal offences (except perhaps in very exceptional circumstances) but they can still pursue claims for damages suffered as a result of criminal activity through the civil courts.
Good point. Individuals can bring private prosecutions in New Zealand and I would be amazed if this were not the case in the UK. There are very few private prosecutions however - I know of only one, in which the family of a victim of a fatal police shooting prosecuted a policeman for murder. (The accused was found not guilty.) As far as I'm aware, you just need counsel to file, then proceed to depositions.
OJ Simpson was sued for civil damages after he walked from the murder charges. The burden of proof is lower at civil law and he lost. Still hasn't paid as far as I know.
Posted on: 27 February 2007 by PJT
Deane, are you getting at our latest advertisement for Capital Punishment aka Burton.
Posted on: 01 March 2007 by Deane F
quote:
Originally posted by PJT:
Deane, are you getting at our latest advertisement for Capital Punishment aka Burton.
PJT
The penny finally dropped (takes a while with me sometimes...) I thought you were referring to our intrepid Minister of Justice...
Posted on: 01 March 2007 by PJT
quote:
Originally posted by Deane F:
quote:
Originally posted by PJT:
Deane, are you getting at our latest advertisement for Capital Punishment aka Burton.
PJT
The penny finally dropped (takes a while with me sometimes...) I thought you were referring to our intrepid Minister of Justice...
Don't start on politicians, or the hangmans noose will break from overuse
